If Ivanka Trump was just the president’s daughter, her lack of understanding of how government works in the United States might not be very important.
She is more than the president’s daughter, however. She is among his official White House staff advisors. 1
On August 4, 2109, she tweeted, in pertinent part2:
“Congress should enact Red Flag laws/Extreme Risk Protection Orders in EVERY state . . ..”
This post is not about the impotency of this policy suggestion. It is about its illegitimacy.
Congress does not enact laws in states. States enact laws in states. Congress enacts federal laws. In our country, this is important. Understanding that distinction is important to understanding how to implement policy in this country. It is alarming one of the president’s official advisors is unaware of this.
Let us assume she misspoke. 3
Perhaps she meant Congress should enact a federal law that applies to “EVERY state.” Alas, this does not save the tweet. The tweet retweeted by Ms. Trump is from Lindsey Graham. The link in Senator Graham’s tweet says, among other things, “In March 2018, the Trump Administration called on every state to enact Extreme Risk Protection Orders.” Sen. Graham gets the distinction correct where Ms. Trump did not. Congress can not enact a federal law forcing states to implement federal policy.
As the U.S. Supreme Court has said:
The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policy making is involved, and no case-by-case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.
Ironically enough, Printz also involved a federal gun control law, the Brady Handgun Violence Prevention Act. 5
It is important to understand the framework upon which our constitutional government rests. Congress has a specific limited role.6 Except for specific constitutional limits, the states control the rest for themselves. 7
Even if a presidential advisor does not grasp this, now you do (if you did not already).
- She foregoes a salary.
- The entire tweet is pictured above
- As always, I encourage you to read the actual case for complete context. The link will take you to the text of the opinion.
- Look for an upcoming episode of The Law to cover Printz and the anti-commandeering doctrine.
- Constitution, Art. I, Sec. 8
- “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Constitution, Tenth Amendment.